                                                                                       ACCEPTED
                                                                                   03-14-00774-CV
                                                                                           6829376
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                               9/8/2015 3:05:55 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                           NO. 03-14-00774-CV

                        IN THE COURT OF APPEALS            FILED IN
                    FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
                                                        AUSTIN, TEXAS
                                AT AUSTIN
                                                    9/8/2015 3:05:55 PM
__________________________________________________________________
                                                      JEFFREY D. KYLE
                                                                Clerk
          TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS
     AND NICOLE ORIA, IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR

                                               Appellant,

                                     V.

                         ELLEN JEFFERSON, D.V.M.
                                         Appellees.
_________________________________________________________________

           ON APPEAL FROM THE 250TH JUDICIAL DISTRICT COURT
                       OF TRAVIS COUNTY, TEXAS
__________________________________________________________________

               BRIEF OF APPELLEE ELLEN JEFFERSON, D.V.M.


DAVID F. BROWN
State Bar No. 03108700                    RYAN CLINTON
dbrown@ebblaw.com                         State Bar No. 24027934
DAVID P. BLANKE                           rdclinton@dgclaw.com
State Bar No. 02453600                    DAVIS, GERALD & CREMER, P.C.
dblanke@ebblaw.com                        111 Congress Ave., Suite 1660
EWELL, BROWN & BLANKE, LLP                Austin, Texas 78701
111 Congress Ave., 28th Floor             Ph: (512) 537-9938
Austin, TX 78701                          Fax: (432) 687-1735
Ph: (512) 457-0233

                Counsel for Appellee Ellen Jefferson, D.V.M.

                         Oral Argument Requested
                            IDENTITY OF PARTIES

Appellants/Defendants:

Texas State Board of Veterinary Medical Examiners (“TBVME”) and Nicole Oria,
In Her Official Capacity as Executive Director

Counsel for Defendants:

Andrew Lutostanski
State Bar No. 24072217
andrew.lutostanski@texasattorneygeneral.gov
Ted A. Ross
State Bar No. 24008890
ted.ross@texasattorneygeneral.gov
Office of the Attorney General of Texas
Administrative Law Division
P. O. Box 12548
Austin, TX 78711
(512) 475-4200




                                      i
Appellee/Plaintiff:

Ellen Jefferson, D.V.M. (“Dr. Jefferson”)

Counsel for Dr. Jefferson:

Trial & Appellate Counsel:

David F. Brown
State Bar No. 03108700
dbrown@ebblaw.com
David P. Blanke
State Bar No. 02453600
dblanke@ebblaw.com
Ewell, Brown & Blanke, LLP
111 Congress Ave., 28th Floor
Austin, TX 78701
Ph: (512) 457-0233

Appellate Counsel:

Ryan Clinton
State Bar No. 24027934
rdclinton@dgclaw.com
Davis, Gerald & Cremer, P.C.
111 Congress Ave., Suite 1660
Austin, Texas 78701
Ph: (512) 537-9938
Fax: (432) 687-1735




                                        ii
                                              TABLE OF CONTENTS
IDENTITY OF PARTIES .................................................................................................. i 

APPENDIX.................................................................................................................. iv 

TABLE OF AUTHORITIES ..............................................................................................v 

STATEMENT OF THE CASE ....................................................................................... viii 

STATEMENT REGARDING ORAL ARGUMENT ...............................................................x 

ISSUES PRESENTED .................................................................................................... xi 

INTRODUCTION ............................................................................................................1 

STATEMENT OF FACTS .................................................................................................3 

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

ARGUMENT .................................................................................................................8 

         I.        Board Rules Inconsistent With the Owner Exemption Are
                   Facially Invalid and May Not Be Applied to Dr. Jefferson. .................8 

                   A.        The Analytical Framework for Determining the
                             Invalidity of the Board’s Rules .................................................. 8 

                   B.        The Purposes of Chapter 801 and the “Owner
                             Exemption” .............................................................................. 11 

                   C.        Each of the Challenged Rules Is Invalid .................................. 14 

                             1.       Board Rule § 573.72, Employment by Nonprofit or
                                      Municipal Corporations, Is Invalid.................................17 

                             2.       Board Rule § 573.80(2), Defining the Statutory
                                      Term “Designated Caretaker,” Is Invalid. ......................22 

PRAYER .....................................................................................................................29 

CERTIFICATE OF SERVICE ..........................................................................................31 

CERTIFICATE OF COMPLIANCE ..................................................................................32 


                                                             iii
                                                  APPENDIX
22 TEX. ADMIN. CODE § 573.72......................................................................... TAB A

22 TEX. ADMIN. CODE § 573.80(2) .................................................................... TAB B

Trial Court Judgment ........................................................................................ TAB C




                                                        iv
                                       TABLE OF AUTHORITIES

                                                                                                     Page(s)

Cases
Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson,
   209 S.W.3d 644, 651-52 (Tex. 2006) ................................................................... 9

City of Corpus Christi v. Public Util. Comm’n,
   51 S.W.3d 231 (Tex. 2001)................................................................................. 22

City of Rockwall v Hughes,
   246 S.W.3d 621, 625-26 (Tex. 2008) ................................................................. 10

Employees Ret. Sys. of Tex. v. Jones,
  58 S.W.3d 148, 154 (Tex. App.—Austin 2001, no pet.) ...................................... 9

Gulf Coast Coalition of Cities v. PUC,
  161 S.W.3d 706 (Tex. App.—Austin 2005, no pet.) ......................................9, 10

Harlingen Family Dentistry, P.C., v. Tex. HHS Comm’n,
  452 S.W.3d 479 (Tex. App.—Austin 2014, pet. filed) ...............................passim

Physician Assistants Business Alliance of Texas, LLC v. Texas
  Medical Board,
  2015 Tex. App. LEXIS 1492 (February 13, 2015) .........................8, 9, 22, 25, 26

PUC of Texas v. City Public Service Board of San Antonio,
  53 S.W.3d 310 (Tex. 2000)................................................................................... 9

Railroad Comm’n of Tex. v. Lone Star Gas Co.,
   844 S.W.2d 679, 685 (Tex. 1992) ...................................................................... 10

State v. Shumake,
   99 S.W.3d 279, 284 (Tex. 2006) .......................................................................... 8

In re State Bd. for Educator Certification,
    452 S.W.3d 802, 808-09 (Tex. 2014) ................................................................. 17

Teladoc, Inc. v. Tex. Med. Bd.,
   453 S.W.3d 606 (Tex. App.—Austin 2014, pet. filed) ............................8, 16, 17



                                                       v
Texas Bd. of Chiropractic Examiners v. Tex. Med. Ass’n,
   375 S.W.3d 464 (Tex. App.—Austin 2012, pet. filed) ......................9, 10, 20, 28

Texas Office of Public Utility Counsel v. Public Util. Comm’n of
   Texas
   131 S.W.3d 314, 321 (Tex. App.—Austin 004, pet. denied) ............................... 9

Texas Orthopaedic Ass’n v. Tex. State Bd. of Med. Exam’rs,
   254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied) ................................... 10

Statutes
Act of March 16, 1911, § 13 (Chapter 76, General Laws) (“Act of
  March 16, 1911”) ..........................................................................................12, 13

TEX. GOV’T CODE § 311.011.................................................................................... 28

TEX. GOV’T CODE § 2001.038...........................................................................ix, 2, 8

TEX. OCC. CODE § 801.002(5) ................................................................................. 13

TEX. OCC. CODE § 801.002(7) ................................................................................. 13

TEX. OCC. CODE § 801.004 ...............................................................................passim

TEX. OCC. CODE § 801.151 ..........................................................................11, 14, 16

TEX. OCC. CODE § 801.251 ...................................................................................... 11

TEX. REV. CIV. STAT. ANN. art. 7465a (1953) ......................................................... 13

TEX. REV. CIV. STAT. ANN. art. 7465a § 3 (1987) ................................................... 13

TEX. REV. CIV. STAT. ANN. art. 8890 § 3 (1993) ..................................................... 13

Other Authorities
22 TEX. ADMIN. CODE § 571.61 ............................................................................... 23

22 TEX. ADMIN. CODE § 573.72 ........................................................................passim

22 TEX. ADMIN. CODE § 573.80(2) ...................................................................passim

20 TEX. REG. 6580 (August 25, 1995) ...............................................................18, 23


                                                        vi
20 TEX. REG. 8905 (October 27, 1995) ..............................................................18, 23

31 TEX. REG. 5538 (July 14, 2006) .......................................................................... 18

31 TEX. REG. 9033 (November 3, 2006).................................................................. 18

http://www.merriam-webster.com/dictionary/designate;
   http://www.merriam-webster.com/dictionary/caretaker (last visited
   September 1, 2015) .......................................................................................27. 28

http://www.veterinary.texas.gov/agency.php .......................................................... 14




                                                       vii
                                STATEMENT OF THE CASE
Nature of the Case:         This is a challenge to certain rules promulgated by the
                            Texas Board of Veterinary Medical Examiners that
                            interfere with an express, legislative exception to
                            TBVME’s regulatory authority. 22 TEX. ADMIN. CODE
                            § 573.72, entitled “Employment by Nonprofit or
                            Municipal Corporations,” and § 573.80(2), the definition
                            of “designated caretaker,” expressly interfere with the
                            right the Texas Legislature bestowed under TEX. OCC.
                            CODE § 801.004(1) that permits owners, their employees,
                            or their designees to treat or care for the owner’s animals
                            in any manner without regulation.

Trial Court:                The Honorable Gisela D. Triana, sitting in the 250th
                            Judicial District Court of Travis County, Texas

Trial Court Disposition: Pursuant to the agreement of the parties, the trial court
                         held a combined plea-to-the-jurisdiction hearing and trial
                         on the merits on August 4, 2014. 2.RR.7-226. Following
                         the trial, the trial court issued a letter ruling, 1.CR.852-
                         54, followed by a judgment, 1.CR.855-57. The trial
                         court also issued findings of fact and conclusions of law.
                         2.CR.36-38.1
                            In relevant part, the trial court’s judgment:
                            •      denies TBVME’s plea to the jurisdiction with
                                   respect to Dr. Jefferson’s challenges to TBVME
                                   rules under TEX. GOV’T CODE § 2001.038,
                                   1.CR.855-56; and
                            •      declares that 22 TEX. ADMIN. CODE §§ 573.72 and
                                   573.80(2) are “contrary to Section 801.004(1) of
                                   the Veterinary Practice Act and therefore invalid,”
                                   1.CR.856-57.

1
      The trial court clerk issued two volumes of the Clerk’s Record but mistakenly labeled
both “Volume 1 of 1.” This brief will refer to the volume filed on December 17, 2014 as
Volume 1, and the volume filed on January 13, 2015 as Volume 2. Citations to the Clerk’s
Record herein will be in the form [Volume].CR.[Page]. Likewise, citations to the Reporter’s
Record will be in the form [Volume].RR.[Page] or, if the citation is to a page of an exhibit,
[Volume].RR.[Exhibit:Page].


                                            viii
Defendants and Dr. Jefferson timely filed notices of
appeal. 1.CR.866-67 (Defendants’ Notice); 1.CR.871-72
(Dr. Jefferson’s Notice).




             ix
                   STATEMENT REGARDING ORAL ARGUMENT
      Because those parts of the trial court’s judgment in favor of Dr. Jefferson are

consistent with the unambiguous terms of the Occupations Code and binding

precedent from this Court and the Texas Supreme Court, this Court may deem it

unnecessary to hear oral argument before affirming the trial court’s judgment with

respect to Dr. Jefferson’s rules challenges. Nonetheless, the Court may consider

oral argument beneficial given the number of issues involved in this appeal.

Accordingly, Dr. Jefferson respectfully requests the opportunity to participate in

oral argument.




                                         x
                               ISSUES PRESENTED
      Did the trial court err in finding that 22 TEX. ADMIN. CODE §§ 573.72 and

573.80(2) are inconsistent with Section 801.004(1) of the Texas Occupations Code,

the “Owner Exemption” to the Veterinary Licensing Act?




                                       xi
                                   INTRODUCTION
      For decades, the Texas Board of Veterinary Medical Examiners has had no

authority to regulate “the treatment or care of an animal in any manner by the

owner of the animal, an employee of the owner, or a designated caretaker of the

animal, unless the ownership, employment, or designation is established with the

intent to violate this chapter.”    TEX. OCC. CODE § 801.004(1) (the “Owner

Exemption”). Despite this unambiguous limitation on the TBVME’s authority, the

agency has attempted over the years to chip away at the express statutory limitation

of the Owner Exemption through the adoption of rules that contravene specific

terms of the Veterinary Licensing Act (the “Act”), run counter to the general

objectives of the statute, and impose burdens, conditions, or restrictions in excess

of or inconsistent with the relevant statutory provisions, including the Owner

Exemption. The Board Rules challenged in this case are instruments by which the

TBVME neuters the Owner Exemption.

      Notwithstanding its recognition in its official publication in 2012 that animal

shelters like San Antonio Pets Alive! (“SAPA”), one of Ellen Jefferson, D.V.M.’s

(“Dr. Jefferson’s”) organizations, may provide treatment and care to animals

owned by the shelters without regard to the agency’s rules and regulations because

shelters are “exempt” from the TBVME’s jurisdiction as a matter of law, the

TBVME brought charges against Dr. Jefferson contending that her treatment or



                                         1
care of the animals SAPA owned, and the treatment or care provided by other

employees or designated caretakers of SAPA, was subject to discipline under the

Act and its rules.    Dr. Jefferson challenged both the TBVME’s ultra vires

prosecution and certain rules under which that action was prosecuted.

      After a combined plea hearing and trial on the merits, which included a

hearing on the validity of the TBVME’s rules, the trial court agreed that certain

TBVME administrative rules contradicted or unduly burdened the legislative

Owner Exemption and found those rules to be invalid. For each of the reasons

presented in this brief, this Court should affirm the trial court’s judgment under

Section 2001.038 of the Texas Government Code invalidating 22 TEX. ADMIN.

CODE §§ 573.72 and 573.80(2) and hold, pursuant to Texas law, that the TBVME’s

rules that conflict with the Owner Exemption are invalid and may not be enforced.




                                        2
                               STATEMENT OF FACTS
      This appeal arises out of the TBVME’s use of certain administrative rules in

its ultra vires prosecution of Dr. Jefferson for activities excepted from the

TBVME’s jurisdiction by the Owner Exemption. The statement of facts set forth

in Dr. Jefferson’s appellant’s brief is useful to an understanding of the extent to

which the TBVME’s adoption, application, and enforcement of the rules

challenged herein interfere with or impair, or threaten to interfere with or impair,

Dr. Jefferson’s legal rights or privileges. Dr. Jefferson will not, however, burden

the record with a redundant explication of the facts that give rise to this case, but

respectfully refers the Court to her appellant’s brief.

                           SUMMARY OF THE ARGUMENT
      At the trial court, Dr. Jefferson challenged several TBVME rules,

contending that they were facially invalid because they squarely contradict the

terms and policy of Section 801.004(1) of the Texas Occupations Code, the

“Owner Exemption” to the Veterinary Licensing Act. After a trial on the merits,

the trial court found two TBVME rules, 22 TEX. ADMIN. CODE §§ 573.72 and

573.80(2) to be invalid. The TBVME appeals that determination.

      The challenged rules are invalid because they contravene specific statutory

language, run counter to the general objectives of the statute from which they arise,

or impose burdens, conditions, or restrictions in excess of or inconsistent with the



                                           3
relevant statutory provisions. Where, as here, the words of the statutory provisions

in issue are not defined by the Legislature and have no technical or acquired

meaning, this Court must construe the words according to their plain and common

meaning unless a contrary intent is apparent from the context. Because the Owner

Exemption is unambiguous, the TBVME is owed no deference in its interpretation.

      The TBVME has shown through the adoption of the challenged rules its

disdain for the Legislature’s recognition of the property rights of animal owners

through the repeated enactment of the Owner Exemption. That the Board has a

concern that the Owner Exemption may be abused if its rules are not upheld does

not excuse the Board’s adoption of provisions intended to give the Board itself

authority the Legislature reserved to animal owners under the Owner Exemption.

The Legislature did not grant the agency authority to restrict the exemption, and it

may not grant itself new authority it thinks expedient.

      Board Rules §§ 573.72 and 573.80(2) are facially invalid and void for the

following reasons:

      1.     Board Rule § 573.72, “Employment by Nonprofit or Municipal
             Corporation.”
             a.      Board Rule § 573.72(b) and (c) each make persons to whom the

                     Act “does not apply” subject to it. In contrast to the terms of

                     the Owner Exemption, under Board Rule § 573.72, owners,

                     employees of owners, and designated caretakers are “not


                                          4
                  exempt” but “shall be liable” for any violation of the Act or

                  TBVME rules. This rule, therefore, directly contradicts the

                  Owner Exemption whenever a veterinarian is employed by or

                  designated to care for the animals of a nonprofit or municipal

                  corporation.

            b.    Board Rule § 573.72(c) improperly extends liability to

                  veterinarians employed by nonprofit or municipal corporations

                  for the actions of others, even though those persons are

                  themselves exempt from the Act as employees or designees.

                  This rule places a burden upon the Owner Exemption by

                  making an exempt veterinarian liable for violations of the Act

                  or Board rules resulting from the otherwise exempt activities of

                  anyone, including an employee or volunteer of a nonprofit or

                  municipal corporation, in treating or caring for an animal the

                  nonprofit or municipal corporation owns.

Board Rule § 573.72, therefore, contradicts the express terms of the Act and

extends TBVME authority where the Legislature has determined that people

should be free from agency regulation. Board Rule § 573.72 is invalid.




                                        5
2.   Board Rule § 573.80, Definition of “Designated Caretaker.”
     a.   Abandoning the plain meaning of the term “designated

          caretaker” in the Owner Exemption, the TBVME contradicts

          the Legislature’s recognition of the property rights of animal

          owners in lieu of a scheme of regulation that usurps the Owner

          Exemption for caretakers an owner lawfully designates.

     b.   In contrast to the position of the TBMVE, it is the Legislature

          that has the power to decide the scope of its authorizing

          statutes, not the agency. Yet the TBVME definition negates the

          exemption where the designated caretaker “engag[es] in any

          aspect of the practice of veterinary medicine (including

          alternate therapies),” regardless of capacity, circumstances, or

          intent. As this Court has held on numerous occasions, a rule is

          void where it conflicts with the plain language of a statute. A

          rule may not narrow the scope of a legislatively mandated

          exemption.

     c.   Further, the TBVME definition of “designated caretaker”

          improperly burdens the right of an owner, or a caretaker the

          owner designates, to the express statutory benefits of the Owner

          Exemption. Board Rule § 573.80(2) establishes a presumption



                               6
                     that a designated caretaker of an animal intends to violate the

                     Act if she “treats an animal for a condition that the animal was

                     known or suspected of having prior to the person being named a

                     designated caretaker . . .,” unless she obtains veterinary

                     supervision.

      Through the challenged rules, the TBVME transparently imposes burdens,

conditions, or restrictions upon the Owner Exemption that contravene the

unambiguous terms of the Act. The TBVME’s enforcement of Chapter 801 and its

rules where the Owner Exemption is applicable is an illegitimate exercise of a

power contradictory to its enabling Act, interfering with or impairing the legal

rights of owners, employees of owners, or the owners’ designees to be free of

regulation.   The challenged rules contravene specific statutory language, run

counter to the general objectives of the statute, and impose additional burdens,

conditions, or restrictions in excess of or inconsistent with the relevant statutory

provision. The Court should affirm the trial court’s finding that the challenged

rules are invalid.




                                          7
                                        ARGUMENT

I.     BOARD RULES INCONSISTENT WITH THE OWNER EXEMPTION ARE
       FACIALLY INVALID AND MAY NOT BE APPLIED TO DR. JEFFERSON.

       A.     The Analytical Framework for Determining the Invalidity of the
              Board’s Rules

       Section 2001.038(a) of the Administrative Procedure Act, Chapter 2001,

Texas Government Code, provides a court with the jurisdiction to hear a challenge

to the validity or applicability of an administrative rule when it is alleged that “the

rule or its threatened application interferes with or impairs, or threatens to interfere

with or impair, a legal right or privilege of the plaintiff.”2 The Administrative

Procedure Act authorizes Texas courts to “render a declaratory judgment without

regard to whether the [plaintiff first] requests the state agency to rule on the

validity or applicability of the rule in question.”3 The challenged Board Rules

§§ 573.72 and 573.80(2) interfere with the right of animal owners to treat or care

for the animals they own under the Owner Exemption.

       The issues in this case involve the construction of TBVME’s authorizing

statute and its rules; accordingly, this Court reviews the trial court’s conclusions de

novo.4      A rules-validity challenge under Section 2001.038 of the Texas

2
       TEX. GOV’T CODE § 2001.038(a).
3
       See TEX. GOV’T CODE § 2001.038(d).
4
         Physician Assistants Business Alliance of Texas, LLC v. Texas Medical Board, 2015 Tex.
App. LEXIS 1492 at *5 (February 13, 2015) (citing State v. Shumake, 199 S.W.3d 279, 284
(Tex. 2006)); Teladoc, Inc. v. Tex. Med. Bd., 453 S.W.3d 606, 614 (Tex. App.—Austin 2014,
pet. filed).


                                              8
Government Code tests a rule on procedural and constitutional grounds, and

specifically, on the question of whether the agency “acted contrary to statute.”5 A

rule is presumed valid, and Dr. Jefferson has the burden of demonstrating its

invalidity.6 “To establish the rule’s facial invalidity,” Dr. Jefferson “must show

that the rule: (a) contravenes specific statutory language; (b) runs counter to the

general objectives of the statute; or (c) imposes burdens, conditions, or restrictions

in excess of or inconsistent with the relevant statutory provisions.”7

       Looking first to the plain language of the statute to ascertain and give effect

to legislative intent, the court looks no further than the literal text if the language is

unambiguous.8 Where the words of the statute in issue are not defined by the

Legislature and have no technical or acquired meaning, the Court must “construe

the words according to their plain and common meaning unless a contrary intent is

apparent from the context.”9



5
        Gulf Coast Coalition of Cities v. PUC, 161 S.W.3d 706, 712 (Tex. App.—Austin 2005,
no pet.) (citing State of Texas Office of Public Utility Counsel v. Public Util. Comm’n of Texas,
131 S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied)); see also PUC of Texas v. City
Public Service Board of San Antonio, 53 S.W.3d 310, 315 (Tex. 2000).
6
       Gulf Coast Coalition, 161 S.W.3d at 712.
7
       Id. See also Texas Bd. of Chiropractic Examiners v. Tex. Med. Ass’n, 375 S.W.3d 464,
474 (Tex. App.—Austin 2012, pet. filed).
8
         Physicians Assistants, 2015 Tex. App. LEXIS at *5 (citing Employees Ret. Sys. of Tex. v.
Jones, 58 S.W.3d 148, 154 (Tex. App.—Austin 2001, no pet.); Alex Sheshunoff Mgmt. Servs.,
L.P., v. Johnson, 209 S.W.3d 644, 651-52 (Tex. 2006)).
9
      Texas Bd. of Chiropractic Examiners, 375 S.W.3d at 474 (citing City of Rockwall v.
Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008)).


                                               9
      If a statute is ambiguous, an agency is given some deference in interpreting

its enabling statute where the agency’s interpretation is both reasonable and does

not contradict the plain language of the statute,10 but no deference is given to the

agency’s interpretation where the statute is unambiguous.11 In this context, “[t]he

determining factor in deciding whether an administrative agency has exceeded its

rule-making authority is whether the rules are ‘in harmony’ with the general

objectives of the legislation involved.”12          An administrative rule may be “in

harmony” with legislative objectives only if it does not impose additional burdens,

conditions, or restrictions in excess of or inconsistent with relevant statutory

provisions.13 At bottom, the law prohibits an agency from exercising what is

effectively a new power or a power contradictory to its enabling statute based on

the claim that the power is expedient for administrative purposes.14 Instead, an

agency’s rules must comport with the agency’s authorizing statute. Unless an




10
     Texas Orthopaedic Ass’n v. Tex. State Bd. of Med. Exam’rs, 254 S.W.3d 714, 719 (Tex.
App.—Austin 2008, pet. denied).
11
      Texas Bd. of Chiropractic Examiners, 375 S.W.3d at 475.
12
      Harlingen Family Dentistry, P.C., v. Tex. HHS Comm’n, 452 S.W.3d 479, 486 (Tex.
App.—Austin 2014, pet. filed) (citing Railroad Comm’n of Tex. v. Lone Star Gas Co., 844
S.W.2d 679, 685 (Tex. 1992); Gulf Coast Coal. of Cities, 161 S.W.3d at 711).
13
      Id. (citing Gulf Coast Coal., 161 S.W.3d at 712).
14
      Id. at 482.


                                              10
agency rule is adopted pursuant to specific or implied statutory authority, it is

void.15

       B.        The Purposes of Chapter 801 and the “Owner Exemption”

       Chapter 801 of the Texas Occupations Code provides the TBVME with

authority to regulate veterinary medicine.16 Within the bounds of Chapter 801, the

TBVME may regulate the licensure and practice of veterinary medicine, adopt

rules consistent with its legislative grant of authority, and enforce both the Act and

its rules.17 The TBVME is subject, however, to the restrictions to its authority set

out in Chapter 801 and in iterations of the law over the more than 100 years in

which a version of the Veterinary Licensing Act has been in force. Particularly

relevant here are the exceptions to the TBVME’s authority set forth in Section

801.004(1), the “Owner Exemption.” Section 801.004(1), like the remainder of

Section 801.004, is an express exemption to the TBVME’s authority to regulate an

individual’s right to practice veterinary medicine.18


15
       Id.
16
       See, e.g., TEX. OCC. CODE § 801.151. Chapter 801 of the Texas Occupations Code, the
Veterinary Licensing Act, will be referenced herein as “the Act.”
17
       See id.
18
       TEX. OCC. CODE § 801.251 provides:
       LICENSE REQUIRED FOR PRACTICE OF VETERINARY MEDICINE.
       Except as provided in Section 801.004, a person may not practice, or offer or attempt to
       practice, veterinary medicine unless the person holds a license to practice veterinary
       medicine issued under this chapter.
Id. (emphasis added).


                                              11
       From its inception in 1911, the Act has always included exemptions from

regulation for livestock practices and care by owners, among other enumerated

exemptions. What has evolved into a panoply of exemptions—circumstances in

which the Act “does not apply”—was founded in the principle that those who were

in the business of veterinary medicine, treating or caring for animals “for

compensation, either directly or indirectly,” should be regulated; others providing

such care, should not.19 “Persons gratuitously treating animals” were exempted

from the Act.20 Likewise, the Act exempted persons performing a variety of

common livestock practices that otherwise would constitute the practice of

veterinary medicine,21 such as “‘dehorning,’ ‘castrating,’ and ‘spaying’” cattle—


19
       Act of March 16, 1911, § 13 (Chapter 76, General Laws) (“Act of March 16, 1911”).
20
       Id.
21
        Section 801.002 of the Act contains the following relevant definitions pertaining to the
practice of veterinary medicine:
       (5) "Practice of veterinary medicine" means:
              (A) the diagnosis, treatment, correction, change, manipulation, relief, or
              prevention of animal disease, deformity, defect, injury, or other physical
              condition, including the prescription or administration of a drug, biologic,
              anesthetic, apparatus, or other therapeutic or diagnostic substance or technique;
              (B) the representation of an ability and willingness to perform an act listed in
              Paragraph (A);
              (C) the use of a title, a word, or letters to induce the belief that a person is legally
              authorized and qualified to perform an act listed in Paragraph (A); or
              (D) the receipt of compensation for performing an act listed in Paragraph (A).
                                               ***
       (7) "Veterinary medicine" includes veterinary surgery, reproduction and obstetrics,
       dentistry, ophthalmology, dermatology, cardiology, and any other discipline or specialty
       of veterinary medicine.


                                                12
practices generally undertaken by the owners of livestock, their employees, and

their neighbors.22

       Over the years, the Owner Exemption has evolved:

        In 1953, the Legislature exempted the “[t]reatment or caring for
         animals in any manner personally by the owner thereof, or by any
         employee of the owner thereof.” 23
        In 1987, the Legislature added a proviso for circumstances where
         “the ownership or employment ha[d] been established with the
         intent of circumventing this Act.”24
        In 1993, the Legislature added any “designated caretaker” to the
         classes of persons eligible for the Owner Exemption.25
        In 1999, the Act was re-codified as Chapter 801 of the Occupations
          Code without any substantive revisions to the Owner Exemption,
          retaining it in its entirety.26
       The Act’s history underscores issues pertinent to the TBVME’s appeal.

Specifically, the concern of the Act has always been traditional clinical

veterinarian practice. The TBVME’s enforcement powers have, therefore, been in


TEX. OCC. CODE §§ 801.002(5), (7).
22
       Act of March 16, 1911, § 13.
23
        TEX. REV. CIV. STAT. ANN. art. 7465a (1953); see also id., § 3(2)-(7)(“male castration on
domestic animals, or docking or earmarking of domestic animals,” “dehorning cattle, or the
spaying of large animals, or operation in aid of the birth process in large animals,” “drenching
and spraying of domestic animals for internal or external parasites, or vaccination for black-leg,
shipping fever, or sore mouth,” “[r]ecommendation by a retail distributor of a medicine, remedy
or insecticide which is adequately labeled and has been duly registered with the Texas State
Department of Health as required by the Texas Livestock Remedy Act when the retail distributor
is advised by the customer of the type of ailment which he wishes to treat,” “[t]reatment and
caring for poultry and rabbits,” and “[b]randing animals in any manner”).
24
       TEX. REV. CIV. STAT. ANN. art. 7465a § 3 (1987).
25
       TEX. REV. CIV. STAT. ANN. art. 8890 § 3 (1993).
26
       See TEX. OCC. CODE § 801.004, enacted in H.B. 3155, 76th Leg. R.S. (1999).


                                               13
the nature of consumer protection. Indeed, the TBVME has recognized as much in

reporting to the Sunset Advisory Committee in its last Sunset Review: “The

protection of Texas consumers who are animal owners is the primary focus of the

[TBVME’s] enforcement program.”27 On its website, the TBVME reiterates that

its mission “is to establish and enforce policies to ensure the best possible quality

of veterinary and equine dental provider services for the people of Texas.”28 The

Legislature has not empowered TBVME to interfere with the right of animal

owners, their employees, or their designees to treat or care for their animals in any

manner, unless they undertake their capacity with the intent to violate the Act.

       C.      Each of the Challenged Rules Is Invalid
       Section 801.151 of the Act permits the TBVME to adopt rules “as necessary

to administer [the Act],” including rules to “protect the public.”29 These rules must


27
        Self-Evaluation Report Submitted to the Sunset Advisory Commission, Texas State
Board of Veterinary Medical Examiners at 22 (August 18, 2003) (“Self-Evaluation Report); see
also id. at 28 (“Through regulation, the public is assured that those who are entrusted with the
care of their animals follow guidelines that protect the patient and protect the health and welfare
of the public. Regulation also provides consumers with an avenue that allows their concerns to
be addressed. The Board, through its Enforcement Division, provides these services to the
public.”).
28
        Texas State Board of Veterinary Medical Examiners, Home Page (emphasis added),
http://www.veterinary.texas.gov/agency.php (emphasis added)(last visited September 3, 2015);
see also id. (TBVME’s home page also recites that “[t]he purpose of the Board is to protect the
public by ensuring that persons entering the profession meet minimum academic and
examination requirements,” and “[t]he Board also establishes and enforces policies to ensure the
best possible quality of veterinary services for the citizens of Texas”) (emphasis added).
29
         TEX. OCC. CODE § 801.151. See also §§ 801.151(f) (restrictions on rules unreasonably
restricting owner or caretaker’s selection of equine dental provider); 801.153 (prohibiting rules
restricting truthful advertising or competitive bidding).


                                                14
be evaluated, however, in the context of the statute on which they are based and

with which they may not conflict.30 The TBVME simply may not regulate where

the Legislature has unambiguously stated that Chapter 801 “does not apply.”31

Specifically, the Act provides in pertinent part that:

       This chapter does not apply to:

       (1) the treatment or care of an animal in any manner by the owner of the
       animal, an employee of the owner, or a designated caretaker of the animal,
       unless the ownership, employment, or designation is established with the
       intent to violate this chapter . . . .32

The Owner Exemption to the applicability of the Act—the entire Act—is clear, and

the Legislature has limited it in only one way: the ownership, employment, or

designation may not be undertaken “with the intent to violate [the Act].”33

Accordingly, where certain conditions exist—in this instance, where the activities

in issue are the treatment or care of an animal by its owner, an employee of the

owner, or the owner’s designee—the Legislature has denied the TBVME authority

to regulate. Whether the agency thinks that adopting new rules or interpreting old


30
       Harlingen Family Dentistry, P.C., 452 S.W.3d at 481-82.
31
        TEX. OCC. CODE § 801.004. Dr. Jefferson does not contend that she is exempt, as a
TBVME licensee, from regulations pertaining to her activities as a licensee, such as registration
and fee-payment requirements; continuing education obligations; or the practice of veterinary
medicine, should it occur, for animals that are not owned by the organizations for which she is an
officer, employee, or designated caretaker. However, Occupations Code Chapter 801 and the
TBVME’s rules “do not apply” to her activities appurtenant to the treatment or care of animals
her organizations own.
32
       TEX. OCC. CODE § 801.004(1).
33
       Id.


                                               15
ones in ways that invade the Owner Exemption is a good idea or expedient, it may

not do so.34 And, because the TBVME’s rulemaking authority arises solely by

means of Section 801.151, which “does not apply” where these conditions exist,

the TBVME’s rules do not apply to these activities.

      The agency attempts to justify its contradiction of the Act by contending that

without the challenged rules, it cannot “protect the public from the unsafe practice

of veterinary medicine.”35 But as this court recently wrote in Teladoc, Inc. v.

Texas Medical Board:

      [W]here, as here, an agency’s legal or policy pronouncements seek to
      control the conduct of a free people through the assertion or threatened
      assertion of State power, agency “impotence” is hardly the relevant concern
      under our Constitution and laws. Rather, it is the risk that agencies—whose
      legitimate authority and very existence must derive from law and not merely
      perceived “expediency”—will stray from their legal limitations (perhaps
      with the best of individual intentions, but exceeding them nevertheless)
      through what federal courts have aptly termed a “tyranny of small decisions”
      that substantively assert Executive or Legislative power over the citizenry
      through forms calculated to avoid the meaningful checks and balances the
      Framers intended the Judiciary to provide.36

The tyranny the TBVME visits upon animal owners, their employees, and their

designees, particularly in the life-saving, animal shelter context, arises from rules

contradicting the relevant statutory language. The TBVME transparently imposes

burdens, conditions, or restrictions upon the Owner Exemption that are


34
      Harlingen Family Dentistry, P.C., 452 S.W.3d at 482.
35
      Pet. Br. at 6.
36
      453 S.W.3d at 622 (citing In re State Bd. for Educator Certification, 452 S.W.3d 802,


                                            16
inconsistent with the unambiguous terms of the Act.                 Further, the TBVME’s

enforcement of Chapter 801 and its rules where the Owner Exemption is applicable

is an illegitimate exercise of a power contradictory to its enabling Act, interfering

with or impairing the legal rights of owners, employees of owners, or the owners’

designees to be free of regulation.           The challenged rules contravene specific

statutory language; run counter to the general objectives of the statute; or impose

additional burdens, conditions, or restrictions in excess of or inconsistent with the

relevant statutory provision. These rules contravene the legislative language and

intent and are invalid.37

              1.       Board Rule § 573.72, Employment by Nonprofit or
                       Municipal Corporations, Is Invalid.
       Board Rule § 573.7238 was originally adopted in 1995 in response to an

opinion of the Attorney General determining that statutory corporate practice of



808-09 (Tex. 2014)).
37
       Harlingen Family Dentistry, P.C., 452 S.W.3d at 481-82.
38
       Board Rule § 573.72 states:
       §573.72 EMPLOYMENT BY NONPROFIT OR MUNICIPAL CORPORATIONS
       (a) A nonprofit or municipal corporation may employ or contract with a veterinarian to
       provide veterinary services in connection with sheltering, sterilization, vaccination, or
       other medical care and treatment of animals.
       (b) Employment by or contractual service to a nonprofit or municipal corporation does
       not exempt the veterinarian from any of the provisions of the Veterinary Licensing Act or
       the Board's rules.
       (c) Veterinarians employed by, or contracted to, nonprofit or municipal corporations shall
       be liable for any violations of the Act or rules occurring as a result of the practice of
       veterinary medicine or any veterinary services provided by the nonprofit or municipal


                                              17
veterinary medicine prohibitions do not apply to a veterinarian’s employment by a

non-profit or municipal corporation.39 The plain language of subsection (a) of the

Board Rule § 573.72 resolves the conflict between TBMVE policy and the Act that

the Attorney General identified. Nothing more is needed to correct the TBVME’s

previous interference with the operations of nonprofit or municipal corporations in

employing veterinarians but to recognize, as Board Rule § 573.72(a) does, that

there is no risk of the corporate practice of veterinary medicine in the context of a

nonprofit or municipal corporation.

       Petitioner claims that Board Rule § 573.72 is merely a mechanism for

“prevent[ing] a licensed vet from hiding behind the veil of a non-profit or

municipal corporation in establishing one of the [Owner E]xemption criteria . . ..”40

The Board further claims that “the rule would obviously not apply” to veterinarians

who fall under the Owner Exemption, as long as they “d[o] not intend to



       corporation, including those occurring due to the acts or omissions of non-licensed
       employees of, or volunteers for, the nonprofit or municipal corporation.
22 TEX. ADMIN. CODE § 573.72. Board Rule § 573.72 was numbered Board Rule § 573.71 at the
time of its original adoption. As it was originally adopted (then Board Rule § 573.71), and as it is
now expressed, Rule § 573.72(c) “stipulates that [doctors of veterinary medicine] employed by
[nonprofit or municipal] corporations are liable for violations of the Act or [TBVME] rules, as
well as acts or omissions of non-licensed employees and volunteers.” 20 TEX. REG. 6580, 6581
(August 25, 1995); see also 20 TEX. REG. 8908 (October 27, 1995) (adopting the original rule).
39
       See Tex. Att’y Gen. LO-95-003 (1995); see also 20 TEX. REG. 6581, 6581-82 (August 25,
1995)(Proposed Rules); 20 TEX. REG. 8908 (October 27, 1995) (Order Adopting Rules); 31 TEX.
REG. 5538 (July 14, 2006)(Proposed Rules); 31 TEX. REG. 9033 (November 3, 2006) (Order
Adopting Rules)(nonsubstantive revisions from the 1995 version).
40
       Pet. Br. at 8.


                                                18
circumvent the provisions of the Act.”41 The TBVME’s post-hoc justifications do

not pass muster. Instead, the remaining subsections of the rule unambiguously and

unlawfully reject and restrict the terms of the Owner Exemption.

      Specifically, Board Rule § 573.72(b) and (c) each make persons to whom

the Act “does not apply” subject to it—under the rule, they are “not exempt” and

“shall be liable.”     Still worse, Board Rule § 573.72(c) extends liability to

veterinarians employed by nonprofit or municipal corporations for the actions of

others who are themselves exempt from the Act as employees or designees. Board

Rule § 573.72, therefore, contradicts the express terms of the Act and extends

TBVME authority where the Legislature has determined that people should be free

from agency regulation.42 Each of these rules exceeds the TBVME’s authority

under the Act.

      Contrary to the speculative claims of the TBVME, there is no risk in

upholding the trial court’s invalidation of the rule. First, the TBVME’s concern

that a veterinarian would use employment by a nonprofit or municipal corporation

as a “veil” fails to recognize that the Legislature has already dealt with this issue:

the Owner Exemption is not applicable where the ownership, employment, or

designation has been undertaken with intent to violate the Act. The rule’s blanket


41
      Pet. Br. at 8.
42
      See, e.g., Harlingen Family Dentistry, P.C., 452 S.W.3d at 481-82.


                                             19
disqualification of veterinarians employed in the nonprofit or municipal corporate

context from eligibility under the Owner Exemption simply contradicts the intent

of the Legislature, which put no other limitations on the Owner Exemption; and

further, it imposes burdens, conditions, or restrictions that the Legislature did not

expressly authorize or necessarily imply.43 In all instances, the statutory right of a

veterinarian or any other person to treat or care for an animal she owns, her

employer owns, or for whom she has been designated a caretaker, is negated if the

capacity of ownership, employment, or designation is undertaken with the purpose

of violating the Act.

      Second, the TBVME’s contention that the Court should ignore Board Rule

§ 573.72’s restrictions because they “obviously” do not apply to a veterinarian in

the Owner Exemption context is nonsense—and contradicts the terms of the rule

itself. Nothing in the rule suggests, much less states, that the statutory Owner

Exemption trumps the rule’s requirements, whether in the context of a nonprofit or

municipal corporation or otherwise. To the contrary, the express terms of the rule

state unambiguously that the Act and the Board’s rules apply to veterinarians

employed by a nonprofit or municipal corporation for all their activities—

necessarily including the treatment or care of the corporation’s animals.44


43
      Id. at 485-86.
44
      See Texas Bd. of Chiropractic Examiners, 375 S.W.3d at 474-75.


                                           20
       Finally, while the Board evidently concedes now that Dr. Jefferson is not

affected by the restrictions of Board Rule § 573.72(b) or (c) in the context of her

work for SAPA or other nonprofit or municipal corporations,45 the actions of the

TBMVE in conducting its prosecution are telling.                 In the amended notice of

hearing that precipitated this case, the TBVME used Board Rule § 573.72 as an

express ground for enforcement against Dr. Jefferson or her nonprofit work with

SAPA, including the alleged acts of employees or volunteers of SAPA.46 In citing

Board Rule § 573.72 in its allegations against Dr. Jefferson, the TBVME used its

rule as a “sword” to create jurisdiction, rather than as a “shield” to protect its

statutory authority. The TBVME may not, however, confer jurisdiction upon itself

where the Legislature has expressly denied it.

       In summary, Board Rule § 573.72 interferes with the Legislature’s statement

of the Owner Exemption in two ways. First, subsection (b) directly contradicts

Section 801.004(1) whenever a veterinarian is employed by or designated to care

for the animals of a nonprofit or municipal corporation. Rather than being exempt

from the Act for the treatment or care of animals the nonprofit or municipal

corporation owns, under Board Rule § 573.72 employees and designees who are


45
       “The rule is not intended to apply to veterinarians who fall under the Owner . . .
Exception . . ..” Pet. Br. at 8.
46
       See, e.g., 1.CR.256-57 (Amended Notice of Hearing, SOAH Docket No. XXX-XX-XXXX, at
7-8)(“Board Rule 573.72 makes it clear that veterinarians who work for a non-profit or
municipal corporation are subject to the Act and the Board Rules and are also responsible for the


                                               21
veterinarians are “not exempt” from the Act or Board Rules but “shall be liable”

for such violations. Id. Second, subsection (c) places a burden upon the Owner

Exemption by making an exempt veterinarian liable for violations of the Act or

Board rules resulting from the otherwise exempt activities of anyone, including an

employee or volunteer of a nonprofit or municipal corporation, in treating or caring

for an animal the nonprofit or municipal corporation owns. Board Rule § 573.72 is

invalid. 47

               2.     Board Rule § 573.80(2), Defining the Statutory Term
                      “Designated Caretaker,” Is Invalid.
       Nowhere in the Act is the term “designated caretaker” used, except in the

Legislature’s statement of the Owner Exemption. The express terms of the Owner

Exemption permit animal owners and those they hire or designate to treat or care

for those animals without regard to the restrictions on the practice of veterinary

medicine that the Act ordinarily imposes on others. The Legislative grant of this

freedom is subject only to the condition that the ownership, employment, or

designation not be undertaken with intent to violate the Act.48




actions of any non-veterinarians who practice veterinary medicine in those corporations.”).
47
       See City of Corpus Christi v. Public Util. Comm’n, 51 S.W.3d 231, 236 (Tex. 2001); see
also Physicians Assistants Bus. Alliance of Texas, LLC, 2015 Tex. App. LEXIS 1492, *6-*7.
48
       TEX. OCC. CODE § 801.004(1).


                                               22
       In attempting to justify its proviso-filled rule defining the terms for which

there is no specialized or technical meaning,49 the Board contends that, in contrast

to the express terms of the Owner Exemption itself, “[t]he intent of [Board Rule

§ 573.80(2)] is to ensure that non-veterinarians practicing veterinary medicine

without a license cannot be exempt from the Act.”50 The Board justifies this

position by asserting that “[i]f the rule is invalidated, then anyone caught practicing

veterinary medicine without a license could evade responsibility by simply

claiming that he or she is a ‘designated caretaker.’”51 Patently hostile to the


49
       § 573.80(2) DEFINITIONS
       (2) Designated caretaker--a person to whom the owner of an animal has given specific
       authority to care for the animal and who has not been designated, by using the pretext of
       being a designated caretaker, to circumvent the Veterinary Licensing Act (Chapter 801,
       Texas Occupations Code) by engaging in any aspect of the practice of veterinary
       medicine (including alternate therapies). A designated caretaker who treats an animal for
       a condition that the animal was known or suspected of having prior to the person being
       named a designated caretaker, is presumed to be attempting to circumvent the Veterinary
       Licensing Act unless the designated caretaker is following the instruction of a
       veterinarian and is under the appropriate level of supervision per board rules. In this
       situation, the designated caretaker may present evidence to rebut the presumption.
22 TEX. ADMIN. CODE § 573.72.
50
       Pet. Br. at 9.
51
        Id. Ironically, in other contexts, the TBVME has recognized that the Owner Exemption
permits the practice of veterinary medicine without a license. Specifically, Board Rule §
571.61(b)(1) restricts veterinarians “whose licenses are on inactive status” from engaging “in the
practice of veterinary medicine or otherwise provid[ing] treatment” to animals in the State
“[e]xcept as provided in § 801.004, Texas Occupations Code.” Id. (emphasis added). See also
20 TEX. REG. 6580, 6580-81 (August 25, 1995)(Proposed Rules); 20 TEX. REG. 8905, 8905-06
(October 27, 1995) (Order Adopting Rules) (explaining adoption of both Board Rule §§ 573.61
and 573.71 (now 573.72), under the pre-Occupations Code codification of the Owner Exemption,
§ 3(a)(1) of the Act). Board Rule § 571.61, therefore, expressly acknowledges the Owner
Exemption trumps the general prohibition of an inactively licensed veterinarian “engag[ing] in
the practice of veterinary medicine or otherwise provid[ing] treatment to any animal in the State
of Texas.” In contrast to Board Rule § 573.72, Board Rule § 571.61 expressly recognizes the


                                               23
statutory Owner Exemption, the TBVME simply exalts its own scheme in place of

the judgment of the Legislature. Contrary to the TBVME’s rationalization, the

definition in Board Rule § 573.80(2) contravenes the plain language of the Owner

Exemption, fails to harmonize with the objectives of the Act, and adds burdens,

conditions, and restrictions inconsistent with the Owner Exemption. The rule is

invalid.52

       First, the plain terms of Board Rule § 573.80(2) are unlimited. In contrast to

the Owner Exemption, the rule expressly presumes “persons” are circumventing

the Act by being designated a caretaker if they “engag[e] in any aspect of the

practice of veterinary medicine.” Id. As such, the rule applies to veterinarians and

lay persons alike, all persons who might at the insistence of an animal’s owner

provide treatment or care to the animals, including actions that otherwise would

constitute the practice of veterinary medicine. By acknowledging in its brief that

Board Rule § 573.80(2) deprives any owner, her employee, or her designee the

right to treat or care for an animal free of TBVME regulation, the TBVME

effectively admits that its intent in adopting the rule is to abrogate the Legislature’s

judgment that an owner’s rights in property are reserved to her. In contrast to the

position of the TBMVE, it is the Legislature, not the agency, that has the power to



Owner Exemption for inactive veterinarian-owners, employees, and designated caretakers.
52
       Harlingen Family Dentistry, P.C., 452 S.W.3d at 481-82.


                                             24
decide the scope of its authorizing statutes. In this case, the Legislature has

decided that owners, employees, and designees are categorically exempt from the

Act, provided only that they are not undertaking their capacity with the intent to

violate the Act. The TBVME may not overrule the Legislature.

      Second, beyond the TBVME’s clear intent to promote its regulatory

authority over the Legislature’s century of preserving animal owners’ property

rights, there are several reasons why Board Rule § 573.80(2) is invalid.

Specifically, the terms of Board Rule § 573.80(2) conflict with the Owner

Exemption. The Owner Exemption is an express exemption to the Act’s general

prohibition on the unlicensed practice of veterinary medicine.            The Owner

Exemption expressly permits owners, employees of owners, and designated

caretakers who do not undertake that capacity with the intent to violate the Act to

treat or care for their animals in any manner. In contrast, the TBVME definition

negates the exemption where the designated caretaker “engag[es] in any aspect of

the practice of veterinary medicine (including alternate therapies),” regardless of

capacity, circumstances, or intent. As this Court has held on numerous occasions,

“A rule is void where it conflicts with the plain language of a statute, and a rule

may not narrow the scope of a legislatively mandated exception.”53 The TBVME




53
      See Physicians Assistants Bus., 2015 Tex. App. LEXIS 1492, *6-*7.


                                           25
definition improperly narrows the Owner Exemption for designated caretakers and

is, therefore, invalid.

       In addition, the TBVME definition of “designated caretaker” improperly

burdens the right of an owner, or a caretaker the owner designates, to the express

statutory benefits of the Owner Exemption. Board Rule § 573.80(2) establishes a

presumption that a designated caretaker of an animal intends to violate the Act if

she “treats an animal for a condition that the animal was known or suspected of

having prior to the person being named a designated caretaker . . .,” unless she

obtains veterinary supervision. Id. This rules-based limitation on the Owner

Exemption for ill animals constitutes a substantive limitation on the scope of the

exemption that the Legislature did not authorize and is contrary to expressed

legislative intent. Moreover, in an enforcement action, Board Rule § 573.80(2)

shifts the burden of proving the designated caretaker’s intent in undertaking her

capacity from the prosecuting agency to the owner or the designated caretaker

herself, again placing a burden upon the Legislature’s express exception. Nothing

in the Act authorizes either the imposition of the TBVME’s condition or the shift

in the burden of proof.54

       Third, despite the inescapable and unlawful consequences of applying the

TBVME’s rule defining “designated caretaker,” the agency simply abandons the


54
       See id. at *6-*7.


                                       26
common meaning of the term, complaining that to use the words of the Legislature

would lead to “absurd” results.55 When it actually addresses the words used in the

Owner Exemption, however, the agency relies upon a simplistic, unsourced, and

out-of-context deconstruction of the terms “designated” and “care” to excuse its

definition.56

      The agency’s deconstruction, however, fails to acknowledge that the term

has a unique context in the Act. Again, the statutory term “designated caretaker” is

used solely in the Owner Exemption and derives its essence by reference to the

property rights of an animal’s owner. As the TBVME inadvertently acknowledges,

an owner of personal property, including an animal, is entitled to appoint any

person she desires as a “caretaker” of her property. But by refusing to recognize

the designee’s relationship to the owner, the TBVME’s analysis abandons the

substance of the term. A “designated” “caretaker” is, indeed, a person “officially

cho[sen] . . . to do or be something,” with that “something” in this context being to

“give[] physical . . . care and support” to the animal or animals in issue.57 But in

extension of the common definition of “care,” the common dictionary meaning of

“caretaker” also carries an element of substitute authority.          Specifically, the


55
      Pet. Br. at 9-10.
56
      Pet. Br. at 10.
57
       See    http://www.merriam-webster.com/dictionary/designate;   http://www.merriam-
webster.com/dictionary/caretaker (last visited September 1, 2015).


                                           27
common definition of designated caretaker implies more than the casual handing

off of an animal for the performance of services (even veterinary services), but

requires something akin to agency or dominion—being or acting on behalf of the

owner herself.58

       Finally, while an owner has the right to designate anyone, including a

veterinarian, to be a “designated caretaker” for her animals under the Owner

Exemption, the TBVME’s claim that such a construction “would vitiate the entire

Act and would create an absurd result which [sic] the legislature never intended” is

a non sequitur. It simply does not follow that use of the plain meaning of the

undefined term “designated caretaker” in the context of the clear terms of the

Owner Exemption will lead to regulatory chaos. To the contrary, where, as here,

the statute is unambiguous, ascertaining the “ordinary or common meaning” or

“plain meaning” is the first resource for determining the drafters’ intent, and

should guide this Court. The TBMVE definition conflicts with both the express

terms of the Owner Exemption and the overall purposes of the Act and is invalid.59

58
       E.g., “one that takes care of the house or land of an owner who may be absent” or “one
temporarily     fulfilling    the     function    of     an    office.”  http://www.merriam-
webster.com/dictionary/caretaker.
59
      See TEX. GOV’T CODE § 311.011; see also Texas Bd. of Chiropractic Examiners, 375
S.W.3d at 474-75.
         In reality, it is the application of the Board Rule § 573.80(2) definition of “designated
caretaker” that would lead to an “absurd result” that “vitiates the entire Act.” Pet. Br. at 10. In
real life, the agency’s definition provides that the daughter of a dairy farmer whose cattle need
medicine each day is “presumed to be attempting to circumvent the [Act],” unless the farmer
hires a vet to supervise her daughter according to Board rules. Just for doing her chores, the


                                                28
      This Board Rule is, therefore, inconsistent with the conception that an owner

and his or her employees or designees are entitled to perform acts of veterinary

medicine free from the restrictions of the Act or the Board Rules. Because Board

Rule § 573.80(2), the Board’s contrived definition of “designated caretaker,”

contravenes the specific statutory language of the Owner Exemption, runs counter

to the general objectives of the statute, and imposes burdens, conditions, or

restrictions in excess of or inconsistent with the Owner Exemption, it is invalid.

                                        PRAYER

      For these reasons, Dr. Jefferson respectfully requests that this Court affirm

that part of the trial court’s judgment invalidating the TBVME’s rules.




daughter is subjected to TBVME prosecution and must prove that she did not take the job in
order to circumvent the Act.


                                           29
Respectfully submitted,

/ s / David F. Brown

Ryan Clinton
State Bar No. 24027934
rdclinton@dgclaw.com
DAVIS, GERALD & CREMER, P.C.
111 Congress Ave., Suite 2800
Austin, Texas 78701
Ph: (512) 537-9938
Fax: (432) 687-1735

David F. Brown
State Bar No. 03108700
dbrown@ebblaw.com
David P. Blanke
State Bar No. 02453600
dblanke@ebblaw.com
EWELL, BROWN & BLANKE, LLP
111 Congress Ave., 28th Floor
Austin, TX 78701
Ph: (512) 457-0233




  30
                           CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing was sent this
8th day of September, 2015 as follows:


      VIA EFSP & EMAIL
      Mr. Andrew Lutostanski
      andrew.lutostanski@texasattorneygeneral.gov
      Mr. Ted A. Ross
      tex.ross@texasattorneygeneral.gov
      Office of the Attorney General of Texas
      Administrative Law Division
      P. O. Box 12548
      Austin, TX 78711

                                     /s/ David F. Brown
                                     David F. Brown




                                       31
                         CERTIFICATE OF COMPLIANCE
      Relying on the word count function in the word processing software used to
produce this document (Microsoft Word), I certify that the number of words in this
brief (excluding the identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, signature, proof of service, certification, certificate of
compliance, and appendix) is 5,222 and that the text of the document is in 14-pt.
font. The text of all footnotes is 12-pt.font.


                                      /s/ David F. Brown
                                      David F. Brown




                                        32
TAB A
                                         22 TAC § 573.72
               This document reflects all regulations in effect as of August 31, 2015

Texas Administrative Code > TITLE 22. EXAMINING BOARDS > PART 24. TEXAS BOARD OF
VETERINARY MEDICAL EXAMINERS > CHAPTER 573. RULES OF PROFESSIONAL CONDUCT
 > SUBCHAPTER G. OTHER PROVISIONS

§ 573.72. Employment by Nonprofit or Municipal Corporations
  (a) A nonprofit or municipal corporation may employ or contract with a veterinarian to provide
      veterinary services in connection with sheltering, sterilization, vaccination, or other medical
      care and treatment of animals.
  (b) Employment by or contractual service to a nonprofit or municipal corporation does not exempt
      the veterinarian from any of the provisions of the Veterinary Licensing Act or the Board’s rules.
  (c) Veterinarians employed by, or contracted to, nonprofit or municipal corporations shall be liable
      for any violations of the Act or rules occurring as a result of the practice of veterinary medicine
      or any veterinary services provided by the nonprofit or municipal corporation, including those
      occurring due to the acts or omissions of non-licensed employees of, or volunteers for, the
      nonprofit or municipal corporation.

History

SOURCE:
The provisions of this § 573.72 adopted to be effective June 14, 2012, 37 TexReg 4229

TEXAS ADMINISTRATIVE CODE
TAB B
                                        22 TAC § 573.80
              This document reflects all regulations in effect as of August 31, 2015

Texas Administrative Code > TITLE 22. EXAMINING BOARDS > PART 24. TEXAS BOARD OF
VETERINARY MEDICAL EXAMINERS > CHAPTER 573. RULES OF PROFESSIONAL CONDUCT
 > SUBCHAPTER G. OTHER PROVISIONS

§ 573.80. Definitions
  The following words and terms, when used in the Veterinary Licensing Act (Chapter 801, Texas
  Occupations Code) or the Rules of the Board (Texas Administrative Code, Title 22, Part 24,
  Chapters 571, 573, 575, and 577) shall have the following meanings, unless the context clearly
  indicates otherwise:
     (1) Accepted livestock management practices--those practices involving animals raised or
         produced primarily for food, fiber, or other products for human consumption, and may
         include the following:
         (A) branding, tattooing, ear tags or identifying marks of any kind;
         (B) tail docking, except cosmetic tail docking that is performed for appearance purposes
             only;
         (C) earmarking;
         (D) routine dehorning, except cosmetic dehorning that reshapes or alters the poll area for
             appearance purposes;
         (E) castration;
         (F) non-surgical assistance with birthing;
         (G) implantation with approved implant products;
         (H) administration of a biologic, except where restricted by law to administration by a
            veterinarian, and not including deworming by use of stomach tubing;
         (I) artificial insemination;
         (J) shoeing and trimming hooves; and
         (K) application or administration of parasiticides, except where restricted by law.
     (2) Designated caretaker--a person to whom the owner of an animal has given specific authority
         to care for the animal and who has not been designated, by using the pretext of being a
         designated caretaker, to circumvent the Veterinary Licensing Act (Chapter 801, Texas
         Occupations Code) by engaging in any aspect of the practice of veterinary medicine
         (including alternate therapies). A designated caretaker who treats an animal for a condition
         that the animal was known or suspected of having prior to the person being named a
         designated caretaker, is presumed to be attempting to circumvent the Veterinary Licensing
         Act unless the designated caretaker is following the instruction of a veterinarian and is
         under the appropriate level of supervision per board rules. In this situation, the designated
         caretaker may present evidence to rebut the presumption.
                                           22 TAC § 573.80



      (3) Food production animals--any mammalians, poultry, fowl, fish or other animals that are
          raised primarily for human food consumption.
      (4) Biologic--any serum, vaccine, antitoxin, or antigen used in the prevention or treatment of
          disease.
      (5) Pregnancy testing--the diagnosis of the physical condition of pregnancy by any method
          other than the gross visual observation of the animal.
      (6) Invasive dentistry or invasive dental procedures--exposing of the dental pulp, or performing
          extractions.
      (7) Consultation--the act of rendering professional advice (diagnosis and prognosis) about a
          specific veterinary medical case, but does not include treatment or surgery.
      (8) General Supervision--a veterinarian required to generally supervise a non-veterinarian must
          be readily available to communicate with the person under supervision.
      (9) Direct Supervision--a veterinarian required to directly supervise a non-veterinarian must be
          physically present on the same premises as the person under supervision.
      (10) Immediate Supervision--a veterinarian required to immediately supervise a non-veterinarian
          must be within audible and visual range of both the animal patient and the person under
          supervision.
      (11) Official Health Documents--any certificate attesting to the health, vaccination status,
          physical condition and/or soundness of an animal.
      (12) Specialist--a veterinarian that is a Board Certified Diplomate of a specialty organization
          recognized by the American Veterinary Medical Association.
      (13) Non-veterinarian employee--an individual paid directly by a veterinarian for work
          involving the practice of veterinary medicine, as defined in the Veterinary Licensing Act,
          Texas Occupations Code, § 801.002(5), regardless of the defined status of the employment
          relationship between the individual and the veterinarian under Internal Revenue Service
          regulations.
      (14) Herd--a group of animals of the same species, managed as a group and confined to a
          specific geographic location. A herd may not include dogs, cats, any animal in individual
          training, or any animal that competes as an individual.

History

SOURCE:
The provisions of this § 573.80 adopted to be effective June 14, 2012, 37 TexReg 4229; amended to
be effective December 25, 2012, 37 TexReg 9937; amended to be effective August 29, 2013, 38 TexReg
5490



                                                                                            Page 2 of 3
                                           22 TAC § 573.80



Annotations

Research References & Practice Aids

CROSS-REFERENCES:

This Section cited in 22 TAC § 573.19, (relating to Dentistry).

TEXAS ADMINISTRATIVE CODE




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